### Rivera v 31 W. 27th St. Prop. Invs. IV, LLC 2024 NY Slip Op 31530(U) April 30, 2024 Supreme Court, New York County Docket Number: Index No. 159581/2019 Judge: Paul A. Goetz Cases posted with a "30000" identifier, i.e., 2013 NY Slip

Op 30001(U), are republished from various New York State and local government sources, including the New

York State Unified Court System's eCourts Service. This opinion is uncorrected and not selected for official publication.NYSCEF DOC. NO. 229 INDEX NO. 159581/2019 RECEIVED NYSCEF: 04/30/2024 

### SUPREME COURT OF THE STATE OF NEW YORK NEWYORK COUNTY PRESENT: HON. PAUL A. GOETZ Justice

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MILTON RIVERA, Plaintiff, PART
INDEX NO.
MOTION DATE 159581/2019 07/10/2023, 07/10/2023 47

- V - MOTION SEQ. NO.
__ 0_05_00_5
__ 31 WEST 27TH STREET PROPERTY INVESTORS IV, LLC, Defendants.

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31 WEST 27TH STREET PROPERTY INVESTORS IV, LLC Plaintiff,-againstVANQUISH GROUP INC., NYC BUILDING SERVICES, INC. Defendants.

--------------------------------------------------------------------------------X 31 WEST 27TH STREET PROPERTY INVESTORS IV, LLC Plaintiff,-againstVANQUISH CONTRACTING CORP Defendant.

--------------------------------------------------------------------------------X DECISION + ORDER ON MOTION
Third-Party Index No. 596028/2020

Second Third-Party Index No. 595374/2023

The following e-filed documents, listed by NYSCEF document number (Motion 005) 150, 151, 152, 153, 154,155,156,157,158,159,160,161,162,163,164,165,166,167,168,169,170,171,172,173,174, 175,176,177,178,179,199,201,202,203,204,205,206,207,208,209,210,211,212,213 were read on this motion to/for CONSOLIDATE/JOIN FOR TRIAL The following e-filed documents, listed by NYSCEF document number (Motion 005) 150, 151, 152, 153, 154,155,156,157,158,159,160,161,162,163,164,165,166,167,168,169,170,171,172,173,174, 175,176,177,178,179,199,201,202,203,204,205,206,207,208,209,210,211,212,213 were read on this motion to/for JUDGMENT - SUMMARY

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In this labor law personal injury action, plaintiffmoves to consolidate this action with a related case, Rivera v Vanquish Group Inc. etal (Index No 155985/2022), and for summary judgment on his LaborLaw 

### §§ 240(1) and 241(6) claims as against 31 West 27th Street Property Investors (31 West) and Vanquish Group Inc. (Vanquish Group) based on their alleged failure to providehim with proper safety devices to performhis work. MOTION TO CONSOLIDATE Plaintifffiled suit against defendant 31 West on October 2, 2019, seeking to recover for injuries he sustained while performing construction work on its property located at 31 West 27th Street, New York, NY 10001 (the project) (Action #1, Index No 159581/2019, NYSCEF Doc No 1). On December 10, 2020, 31 West filed a third-party complaint against the project's general contractor, Vanquish Group, and subcontractor, NYC Building Services Inc. (Building Services), claiming that third-party defendants had agreed to indemnify 31 West against any claims arising from the project (NYSCEF Doc No 35). Upon realizing thatplaintiffwas employedbyBuilding Services (NYSCEF DocNo 151, 

### ,i 9) as opposed to Vanquish Contracting Corp. (Vanquish Contracting), an associated entitywhich mayhave supplied the ladder at issue in this action, plaintiffcommenced a separate action against Vanquish Group and Vanquish Contracting based
on the same incident that formed the basis ofhis suit against 31 West (Action #2, Index No 155985/2022, NYSCEF DocNo 1). 31 West later filed a second third-party complaintin Action #1, this time against Vanquish Contracting (NYSCEF DocNo 97). Plaintiffnow moves for an order, pursuant to CPLR § 602, consolidating the two separate actions on the grounds that they involve the same facts, parties, and issues oflaw (NYSCEF Doc No 152). The motion to consolidate is unopposed by defendant and third-party defendants (NYSCEF Doc Nos 201,209,210).

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CPLR § 602 provides that "[w]hen actions involving a common question oflaw or fact
are pending before a court, the court, upon motion,
... may order the actions consolidated, and maymake such other orders concerning proceedings therein as may tend to avoidunnecessary costs or delay." Since the two actions involve the same questions oflaw and facts relating to plaintiffs work-related injury, the unopposed motion to consolidate will be granted in order to
save time, costs, and resources ofboth the parties and the court. MOTION FOR SUMMARY JUDGMENT BACKGROUND Plaintifftestified that hebegan working on the project two months priorto his accident, performing typical demolition functions (NYSCEF DocNo 168, 65:7-11, 70:2-14). In the few nights preceding the accident, he worked on the third floor, cutting cables thatwere hanging from the II-foothigh ceiling (NYSCEF DocNo 116, 17: 17-18: 12, 28:23-29: 11). In order to reach the cables, plaintiffused one ofthree eight-footA-frame ladders made available to him (id., 19:22-24). Each time, he wouldposition the ladderbelow the cables, lock it, climb six steps up, cut the cables with scissors, descend the ladder, and repeat as needed (id., 30:5-32:7). On September 6, 2019, plaintiffarrived at the third floor ofthe work site at 4:30 p.m. and, as instructedbyhis foreman, Mike, began cutting wires (id., 24: 12-25, 25: 18-26: 12). Plaintifftestified that the ladderhe was using that evening was defective in that the back feet
werebroken and the bottom ofthe ladderwas damaged, preventing the ladder from standing flush on the floor (id., 33:7-35:7). Plaintifffurther testified that heraised this concern to Mike, who responded that there were no other ladders available, but thatnew equipment would arrive soon, and advisedplaintiffto be careful in the meantime (id.).

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Immediatelybefore his accident, plaintiffpositioned the ladderunder some cables that needed to be cut (id., 39:23-40: 12). After clearing away some garbage and metal on the floor in that area, he opened the ladder, locked it, and climbed up as usual (id.). Once on the sixth step, plaintiffpickedup his scissors andraisedhis hands to reach towards a cable (id., 40: 12-14). When he did this, the laddermovedbeneath him, and he lost his balance and fell, along with the ladder (id., 40: 14-17). Plaintifftestified thathe fell on his back and neck, making contactwith a demolishedbathroomwall partition that hadpieces ofmetaljutting out ofit (id., 40: 18-25). Plaintiffalso claims injuries to his knee, head, wrist, and shoulders (id., 41 :2-3). DISCUSSION "Itis well settled that 'the proponent ofa summaryjudgmentmotion must make a prima facie showing ofentitlement tojudgment as a matter oflaw, tendering sufficient evidence to demonstrate the absence ofany material issues offact."' 

### (Pullman v Silverman, 28 NY3d 1060, 1062 [2016], quoting

### Alvarezv ProspectHosp., 68 NY2d 320,324 [1986]). "Failure to make such showing requires denial ofthe motion, regardless ofthe sufficiency ofthe opposing papers." 

### (Winegrad vNew York Univ. Med. Ctr., 64 NY2d 851, 853 [1985] [internal citations omitted]). "Once such a prima facie showing has been made, the burden shifts to the party opposing the motion to produce evidentiary proofin admissible form sufficient to raise material issues offact which require a trial ofthe action." (

### Cabrera vRodriguez, 72 AD3d 553, 553-554 [1st Dept 2010], citing

### Alvarez, 68 NY2d at 342). "The court's function on a motion for summaryjudgmentis merely to determine ifany triable issues exist, not to determine the merits ofany such issues or to assess credibility." 

### (Meridian Mgmt. Corp. v Cristi Cleaning Serv. Corp., 70 AD3d 508, 510-511 [1st Dept 2010] [internal citations omitted]). The evidence presented in a summaryjudgmentmotion must be

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examined "in the light most favorable to the non-moving party" 

### (Schmidt v OneNew YorkPlaza Co., 153 AD3d427,428 [2017], quoting 

### Ortiz v 

### Varsity Holdings, LLC, 18 NY3d 335, 339 [2011]) and bare allegations or conclusory assertions are insufficient to create genuine issues of fact 

### (Rotuba Extruders v 

### Ceppos, 46 NY2d 223,231 [1978]). Ifthere is any doubt as to the existence ofa triable fact, the motion for summaryjudgmentmustbe denied 

### (id.). LaborLaw § 241(6) LaborLaw§ 241(6) imposes an obligation on owners and contractors that "[a]ll areas in which [] demolition work is beingperformed shall be so [equipped] as to providereasonable and adequate protection and safety to the persons employedtherein orlawfully frequenting such places." Notably, the obligations imposedunder LaborLaw§ 241 are non-delegable, meaning that once a plaintiffhas established a violation, he neednot demonstrate that the owner or general contractor exercised supervision or control over the worksite 

### (Ross v Curtis-Palmer Hydro-Elec. Co., 81 NY2d494, 502 [1993]; 

### Rizzuto vL.A. Wenger Contr. Co., 91 NY2d 343, 348-49 [1998] ["section 241 (6) imposes liability upon a general contractor 

### for the negligence of
a subcontractor, even in the absence ofcontrol or supervision ofthe worksite"] [emphasis in original]). In order to state a viable LaborLaw§ 241 claim, a plaintiffmust allege that the defendant violated a specific standard ofconductunder the Industrial Code (

### Toussaint v Port Auth. ofN.Y, 38 NY3d 89, 94 [2022]). Plaintiffs LaborLaw§ 241(6) claimis based on Industrial Code§ 23-1.21(b)(3), which provides that "[a] ladder shall notbe used
... (i) Ifit has a broken member orpart[;] (ii) Ifit has any insecurejointsbetweenmembers orparts[;] (iv) Ifithas any flaw or defect ofmaterial that may cause ladder failure." He alleges 31 West, as the owner ofthe premises, and Vanquish Group, as the general contractor, violated Industrial Code § 23-1.21(b)(3) byprovidinghim with

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### a ladder that was broken, unsecured, and defective. He described the poor condition the ladder
was in prior to his accident (NYSCEF Doc No 179, 33:24-35: 11 

### ["The ladder was broken on the bottompart, where the feet are"]). Consequently, plaintiffhas methis prima facie burden of establishing that the ladder failed to provide himwith "reasonable and adequate protection and safety" under Labor Law § 241(6). Defendant 31 West cites the deposition testimony ofVanquish Group owner Carlo Bardone 1, 

### who indicated that the ladder was in good working order and that no complaints had been made about its condition priorto plaintiff's accident (NYSCEF DocNo 173 ["I physically climbed up and down [and] worked on the ladder
... There was nothing wrong with the ladder."]). Therefore, 31 West sufficiently raised an issue offact as to whether the ladderwas in good working order priorto plaintiff's accident and summaryjudgmentmust be denied (Majstorovic vBestMkt., 215 AD3d 560, 560-61 [1st Dept 2023]). Accordingly, the portion of plaintiff's motion seeking summaryjudgment on his LaborLaw§ 241(6) claim will be denied. Labor Law § 

### 240(1) 

### Labor Law§ 240 (1), 

### also known as New York's "ScaffoldLaw," provides, in relevant part: All contractors and owners and their agents . . . in the erection, demolition, repairing, altering, painting, cleaning or pointing of a building or structure shall furnish or erect, or cause to be furnished or erected for the performance of such labor, scaffolding, hoists, stays, ladders, slings, hangers, blocks, pulleys, braces, irons, ropes, and other devices which shall be so constructed,placed and operated as to give properprotection to a person so employed. LaborLaw§ 240 (1) 

### "imposes absolute liability on building owners and contractors whose failure to provide proper protection to workers employed on a construction site

1 This deposition testimony was submitted onplaintiff's movingbrief.

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proximately causes injury to a worker" (Wilinski v 334E. 92ndHaus. Dev. Fund Corp., 18 NY3d 1, 7 [2011] [internal quotation marks and citation omitted]). To prevail on a Labor Law§ 240 (1) cause ofaction, the plaintiffmust establish that the statute was violated, and that the violation was a proximate cause ofhis orher injuries (Blake vNeighborhoodHaus. Servs. of N. Y City, I NY3d 280, 287-289 [2003]). "[T]he single decisive question is whetherplaintiff's injuries were the direct consequence ofa failure to provide adequate protection against arisk arising from a physically significant elevation differential" (Runner v New York StockExch., Inc., 13 NY3d 599, 603 [2009]). The legislative intentbehind the statute is to place "ultimate responsibility for safety practices at building constructionjobs where such responsibility actually belongs, on the owner and general contractor, instead ofon workers, who are scarcely in a position to protect themselves from accident" (Zimmer v Chemung CountyPerformingArts, 65 NY2d 513,520 [1985], rearg denied 65 NY2d 1054 [1985] [internal quotation marks and citations omitted]). Therefore, the statute shouldbe liberally construed to achieve the purpose for which itwas framed (Rocovich v ConsolidatedEdison Co., 78 NY2d 509,513 [1991]). In terms ofladders specifically, Labor Law§ 240(1) requires that ladders and other safety devices be "so constructed, placed and operated as to give proper protection" to a worker (Labor Law§ 240(1); see also Klein v City of New York, 89 NY2d 833, 833-34 [1996]; Lipari vAT Spring, LLC, 92 AD3d 502, 503-04 [1st Dept 2012]). The "failureto properly secure a ladderto insure that it remains steady and erect while being used, constitutes a violation ofLabor Law § 240 (1)" (Plywacz v 85 BroadSt. LLC, 159 AD3d 543, 544 [1st Dept 2018] [internal quotation marks and citation omitted]). "Itis sufficient for purposes ofliability under section 240 (1) that adequate safety devices to prevent the ladder from slipping or to protect plaintifffrom falling

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were absent" (Orellano v 29E. 37th St. Realty Corp., 292 AD2d 289,291 [1st Dept 2002]). The plaintiffis notrequired to show that the ladder was defective (Perez vNYCPartnership Haus. Dev. Fund Co., Inc., 55 AD3d419,420 [1st Dept 2008]). Here, plaintiffhas made a prima facie showing that the ladderwas inadequate to protect him from falling. His workrequired himto climb up six steps andrelease his grip on the ladder in order to cut the cables; when he did so and lost his balance, there was nothing to steady him or otherwise preventhis fall. Defendants argue that plaintiffs motion is premature because discovery pertaining to defendants' defense against liability under Labor Law§ 240(1) remains outstanding. In particular, 31 West argues that it lacks information as to "potential factual witnesses, notice ofa dangerous condition [and] the age, condition and maintenance ofthe ladders used by the plaintiffand his coworkers at thejobsite" (NYSCEF DocNo 201). However,
as explained supra, plaintiffdid notneed to demonstrate that the ladderwas defective in order to prevail on his Labor Law§ 240(1) claim; plaintiffonlyneeded to establish that the ladder provided inadequate protection, and he has done so. Thus, any issue offact as to the condition of the ladder is notmaterial to this cause ofaction (Paul v Village of Quogue, 178 AD3d 942 [2nd Dept 2019] ["Aparty contending that a motion for summaryjudgmentis premature is required to demonstrate that additional discovery might lead to ... facts essential to oppose the motion" [internal quotations omitted, emphasis added]). Accordingly, the portion ofplaintiffs motion seeking summaryjudgment on his Labor Law § 240(1) claim will be granted. CONCLUSION Based on the foregoing, it is

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### ORDERED that the unopposed motion to consolidate the above-captioned action with 

### Milton Rivera v Vanquish Group Inc. et al, Index No. 155985/2022, pending in this court is granted; and it is further ORDERED that the consolidation shall take place under Index No. 159581/2019 and the consolidated action shall bear the following caption: MILTON RIVERA, Plaintiff,-against31 WEST 27TH STREET PROPERTY INVESTORS IV, LLC, VANQUISH GROUP INC. and VANQUISH CONTRACTING CORP., Defendants. 

### ---------------------------------------------------------------------------------X 31 WEST 27TH STREET PROPERTY INVESTORS IV, LLC, Third-Party Plaintiff,-againstVANQUISH GROUP INC. and NYC BUILDING SERVICES, INC., Third-Party Defendants. 

### --------------------------------------------------------------------------------X 31 WEST 27TH STREET PROPERTY INVESTORS IV, LLC Second Third-Party Plaintiff,-againstVANQUISH CONTRACTING CORP. Second Third-Party Defendant. 

### --------------------------------------------------------------------------------X
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### And it is further INDEX NO. 159581/2019 RECEIVED NYSCEF: 04/30/2024



### ORDERED that the pleadings m the actions hereby consolidated shall stand as the pleadings in the consolidated action; and it is further ORDERED that, within 30 days from entry ofthis order, movant shall serve a copy ofthis order with notice ofentry on the Clerk ofthe Court, who shall consolidate the documents in the actions hereby consolidated and shall markhis records to reflect the consolidation; and itis further ORDERED that counsel for the movant shall contact the staffofthe Clerk ofthe Court to arrange for the effectuation ofthe consolidation hereby directed; and it is further ORDERED that service ofthis order upon the Clerk ofthe Court shall be made in hardcopy format if this action is a hard-copy matter or, if it is an e-filed case, shall be made in accordance with the procedures set forth in the 

### Protocol on Courthouse and County Clerk Proceduresfor Electronically Filed Cases (accessible at the "E-Filing" page on the court's website); and it is further ORDERED that, as applicable and insofar as is practical, the Clerk ofthis Court shall file the documents being consolidated in the consolidated case file under the index number of the consolidated action in the New York State Courts Electronic Filing System or make appropriate notations of such documents in the e-filing records of the court so as to ensure access to the documents in the consolidated action; and it is further ORDERED that, within 30 days from entry ofthis order, movant shall serve a copy ofthis order with notice ofentry on the Clerk ofthe General Clerk's Office, who is hereby directed to reflect the consolidation by appropriately marking the court's records; and itis further

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### ORDERED that such service upon the Clerk ofthe General Clerk's Office shall be made inhard-copy format ifthis action is a hard-copy matter or, ifit is an e-filed case, shall be made in accordance with the procedures set forth inthe aforesaidProtocol; 

### andit is further ORDERED that, upon consolidation, the portion ofplaintiffs motion seeking summary judgment onhis Labor Law § 

### 241(6) claim is denied; anditis further ORDERED that, upon consolidation, the portion ofplaintiffs motion seeking summary judgment onhis Labor Law § 

### 240(1) claim is granted.

4/30/2024

DATE CHECK ONE:
APPLICATION: CHECK IF APPROPRIATE:

# ~ CASE DISPOSED GRANTED**□** DENIED SETTLE ORDER INCLUDES TRANSFER/REASSIGN

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11 of 11 PAUL A. GOETZ, J.S.C. NON-FINAL DISPOSITION GRANTED IN PART SUBMIT ORDER FIDUCIARY APPOINTMENT

### □ OTHER**□** REFERENCE

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